Concept Easements and Indian Easement Act

Sec 4 Of the Indian Easement Act "Easement" defined

An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.

Dominant and servient heritages and owners.-

The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and

the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and

the owner or occupier thereof the servient owner.

Illustrations

(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement.

(b) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household, out of a spring therein. This is an easement.

(c) Z, as the owner of a certain house, has the right to conduct water from X’s stream to supply the fountain in the garden attached to the house. This is an easement.

d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees in E's land. These are easements.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.

(f) A is bound to cleanse a water course running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.

Essentials of Easement

There must be dominant tenement and servient tenement

Such tenement should be of distinct in nature

Easements are not concerned with the owners personally but the are imposed upon the corporeal capacity

The dominant tenement is entitled to accommodation in the case of easement

profits-a-prendre and Easement:

Natural rights and Easements

Licenses and Easements

The right of way

Easement of light

Easement of access to air

Easements regarding pollution of water

Easements relating to water

Who may impose Easements:

An easement may be imposed by any one in the circumstances and to the extent in and to which he may be transfer his interest in the heritage on which the liability is to be imposed

Meaning of the term “imposed”

The term imposed under this section means imposing a right or easement which may be an express grant or implied grant. It may also include imposition by omission to take steps to prevent acquisition by prescription

Easement by Express grant

• The grant need not be in writing and it may be in oral too but the grant is not

reduced to writing the surrounding circumstances can be taken in to consideration to interrupt such grant

• The same may in the form of personal agreement

Easement by implied grant:

Easement by constructive grant:

Easement by limited owner

Easement created by conveyance

Easement by acquiesce

Extinction of easement

When from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.

Exception.-Nothing in this section applies to an easement lawfully imposed by a mortgagor in accordance with section 10Illustrations

(a) A transfers Sultanpur to B on condition that he does not many C, B impresses an easement on Sultanpur. Then B marries C, B's interest in Sultanpur ends, and with it the B's interest in Sultanpur ends, and with it the easement is extinguished.

(b) A, in 1860, let Sultanpur to B for thirty years from the date of the lease. B, in 1861, imposes an easement on the land in favor of C, who enjoys the easement peaceably and openly as an easement without interruption for twenty-nine years, B's interest in Sultanpur then ends, and with it C's easement

c) A and B, tenants of C, have permanent transferable interests in their respective holdings. A imposes on his holding an easement to draw water from a tank for the purpose of irrigating B's land. B enjoys the easement for twenty years. Then A's rent falls into arrear and his interest is sold. B's easement is extinguished.

(d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favor of C in accordance with the provisions of section 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not thereby extinguished

Sec 38 Extinction by release

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner.

Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage. An easement may be released as to part only of the servient heritage

An easement is impliedly released–

(a) where the dominant owner expressly authorizes an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;

where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.

Mere non-user of an easement is not an implied release within the meaning of this section.

Illustrations

(a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. This release is effectual only as against A and his legal representative.

(b) A grants Ban easement over A's land for the beneficial enjoyment of his house, B assigns the house to C, B then purports to release the easement. The release is ineffectual

(c) A, having the light to discharge his eavesdropping's into B's yard, expressly authorizes B to build over this yard to a height which will interfere with the discharge. B builds accordingly. A's easement is extinguished to the extent of the interference.

(d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently. The easement is impliedly released.

(e) A, having a projecting roof by means of which he enjoys an easement to discharge caves-dropping on B's land, permanently alters and roof, so as to direct the rain-water into a different channel and discharge it on C's land. The easement is impliedly released

Sec 39 Extinction by revocation

An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement

40 Extinction on expiration of limited period or happening of dissolving condition

An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled

Sec 41 Extinction on termination of necessity

An easement of necessity is extinguished when the necessity comes to an end.

Illustration

A grants B a field inaccessible except by passing over A s adjoining land, B afterwards purchases a part if that land over which he can pass to his field. The right of way over A's land which B had acquired is extinguished.

Sec 42 Extinction of useless easement

An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner

Sec 43 Extinction by permanent change in dominant heritage

Where, by, any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment Of the easement, the easement is extinguished unless—

(a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used;

(b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or

(c) the easement is an easement of necessity.

Nothing in this section shall be deemed to apply to an easement entitling the dominant owner to support of the dominant heritage

Sec 44 Extinction on permanent alteration of servient heritage by superior force

An easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement: Provided that, where a way of necessity is destroyed by superior force, the dominant owner has a right to another way over the servient heritage; and the provisions of section 14 apply to such way.

Illustrations

(a) A grants to B, as the owner of a certain house, a right to fish in a river running through A's land. The river changes its course permanently and runs through C's land. B's easement is extinguished.

(b) Access to a path over which A has a right of way is permanently cut off by an earthquake. A's right is extinguished

Sec 45 Extinction by destruction of either heritage

An easement is extinguished when either the dominant or the servient heritage is completely destroyed.

Illustration

A has a right of way over a road running along the foot of a sea-cliff. The road is washed away by a permanent encroachment of the sea. A's easement is extinguished.

46 Extinction by unity of ownership

An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages.

Illustration

(a) A, as the owner of a house, has a right of way over B's field. A mortgages his house, and B mortgages his field to C. Then C forecloses both mortgages and becomes thereby absolute owner of both house and field. The right of way is extinguished.

(b) The dominant owner acquires only pan of the servient heritage; the easement is not extinguished, except in the ease illustrated in section 41.

(c) The servient owner acquires the dominant heritage in connection with a person; the easement is not extinguished.

(d) The separate owners of two separate dominant heritages jointly acquire the heritage which is servient to the two, separate heritages; the easements are not extinguished.

(e) The joint owners of the dominant heritage jointly acquire the servient heritage; the easement is extinguished.

(f) A single right of way exists over two servient heritages for the beneficial enjoyment of a single dominant heritage. The dominant owner acquires only one of the servient heritages. The easement is not extinguished.

(g) A has a right of way over B's road. B dedicates the road to the public A's right of ways is not extinguished

Sec 47 Extinction by non-enjoyment

A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.

A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.

Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner: Provided that if, in the case of a discontinuous easement the dominant owner, within such period, registers, under the Indian Registration Act, 1877 (III of 1877) , a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.

Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.

The circumstance that, during the said period no one was in possession of the servient heritage, or that the easement could not be enjoyed or that a right accessory thereto was enjoyed, or that dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.

An easement is not extinguished under this section

(a) where the cessation is in pursuance of a contract between the dominant and servient owners

b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or (c) where the easement is a necessary easement. Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.

Illustration

A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over V and Z are not extinguished

Sec 48 Extinction of accessory right

When an easement is extinguished, the rights (if any) accessory thereto are also extinguished. Illustration A has an easement to draw water from B's well. As accessory thereto, he has a right of way over B's land to and from the well. The easement to draw water is extinguished under section 47. The right of way is also extinguished.

Sec 49 Suspension of easement

An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein

Sec 50 Servient owner not entitled to require continuance

The servient owner has no right to require that an easement be continued; and, notwithstanding the provisions of section 26, he is not entitled to compensation for damage caused to the servient heritage in consequence of the extinguishment or suspension of the easement, if the dominant owner has given to the servient owner such notice as will enable him, without unreasonable expense, to protect the servient heritage from such damage.

Compensation for damage caused by extinguishment or suspension.-Where such notice has not been given, the servient owner is entitled to compensation for damage caused to the servient heritage in consequence of such extinguishment or suspension.

Illustration

A, in exercise of an easement, diverts to his canal the water of B's stream. The

diversion continues for many years, and during that time the bed of the stream partly

fills up. A then abandons his easement, and restores the stream to its ancient course.

B's land is consequently flooded. B sues A for compensation for the damage caused by

the flooding. It is proved that A gave B a month's notice of his intention to abandon

the easement, and that such notice was sufficient to enable B, without unreasonable

expense, to have prevented the damage. The suit must be dismissed

Sec 51 Revival of easement

An easement extinguished under section 45 revives

(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of allusion;

(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site, and

(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage

An easement extinguished under section 46 revives when the grant or bequest by

which the unity of ownership was produced is set aside by the decree of a

competent court. A necessary easement extinguished under the same section

revives when the unity of ownership ceases from any other cause

Illustration

A, as the absolute owner of field Y, has right of way thither over B's field Z, A obtains from B a lease of Z for twenty years. The easement is suspended so long as A remains lessee of Z. But when A assigns the lease to C, or surrenders it to B, the right of way revives

Sec 53 Who may grant license

A license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license

Sec 54 Grant may be expressed or implied

The grant of a license may be expressed or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license

Sec 55 Accessory, licences annexed by law

All licences necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right. Such licences are called accessory licences.

Illustration A sells the trees growing on his land to B. B is entitled to go on the land and lake away the trees

Sec 56 Licence when transferable

Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents

Illustrations

(a) A grants B a right to walk over A's field whenever he pleases. The right is not annexed to any immovable property of B. The right cannot be transferred.

(b) The Government grant B a licence to erect and use temporary grain-sheds on Government land. In the absence of express provision to the contrary. B's servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.

Sec 57 Grantor's duty to disclose defects

The grantor of a licence is bound to disclose to the licensee any defect in the property affected by the licence, likely to be dangerous to the person or property of the licensee, of which the grantor is, and the licensee is not, aware.

Sec 60 Licence when revocable

A licence may be revoked by the grantor, unless–

(a) it is coupled with a transfer of property and such transfer is in force;

(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution

Sec 61 Revocation express or implied:

The revocation of a licence may be express or implied.

Illustrations

(a) A, the owner of a field, grants a licence to B, to use a pain across it. A, with intent to revoke the licence, locks a gate across the path. The licence is revoked.

(b) A, the owner of a field, grants a licence to B, to slack hay on the field, A lets or sells the field to C. The licence is revoked

Sec 62 Licence when deemed revoked

A licence is deemed to be revoked–

(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the licence;

(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;

(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled

(d) where the property affected by the licence is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;

(e) where the licensee becomes entitled to the absolute ownership of the property affected by the licence;

(f) where the licence is granted for a specified purpose and the purpose is attained or abandoned, or becomes impracticable;

(g) where the licence is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;

h) where the licence totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;

(i) in the case of an accessory licence, when the interest or right to which it is accessory to exist

Licensee's rights on revocation

Where a licence is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property

Licensee's rights on eviction

Where a licence has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the licence, the right for which he contracted, he is entitled to recover compensation from the grantors